Act 13 declared unconstitutional on four counts

July 26, 2012 —

HARRISBURG, PA — A Pennsylvania court has sustained four counts in the suit against the Commonwealth of Pennsylvania challenging the constitutionality of Act 13, a law that would supersede local municipalities’ abilities to zone oil and gas drilling operations, among other provisions.

Petitioners have been granted summary relief on Counts I, II, III and VIII of their suit.These court actions have the effect of invalidating the portions of the law pertaining to statewide zoning standards.

The Commonwealth’s objections to the other counts have been sustained.

The upheld counts charge that the act is unconstitutional because it is an improper exercise of police power; that by allowing for incompatible uses in certain zones it is in derogation of municipalities’ comprehensive zoning plans, does not allow them to create new or follow existing comprehensive plans, and constitutes an unconstitutional use of zoning districts; that it is in violation of the state Municipal Planning Code; and because it delegates authority to the Department of Environmental Preservation without definitive standards or authorizing language.

There are a total of 12 counts, eight of which were not upheld. One of the counts that was rejected challenged the gag rule on physicians; the court found that the party filing that charge, a physician, did not have standing. Another provision that still stands is the impact fee imposed on gas wells.

Responding to the decision, Tom Shepstone, the campaign director for Energy in Depth Marcellus, an industry group promoting natural gas drilling in the state, said, "This matter will, undoubtedly, go to the Pennsylvania Supreme Court. The Commonwealth Court has a history of making political decisions on land use matters and this case is no exception and the decision was no surprise. However, even if upheld, it would likely only leave matters as they are and allow communities to restrict development in residential districts, which is not a terribly serious limitation."